Nora D. Brooks has not been charged as an accessory to her boyfriend in the fatal beating and sexual assault of her 5-year-old son because there is no evidence that she knowingly participated in either crime, Erie County District Attorney Frank A. Sedita III said Wednesday.

“If there was evidence that anybody else knowingly and intentionally participated in either the murder of this child or the sexual assault, it would have been presented to the grand jury, and that person would have been indicted as well,” he said.

Sedita’s comment came a day after Robin Hart, the maternal grandmother of Eain Clayton Brooks, said her daughter, Nora Brooks, should be charged for making it possible for Matthew W. Kuzdzal to beat Eain to death Sept. 15 in their West Side apartment.

“Kuzdzal is not the only one that needs to be behind bars. My daughter Nora should be behind bars,” Hart said. “Most predators kidnap children. Nora handed Eain over to him. She left Eain with Kuzdzal. You cannot tell me that after all that was going on – the black eye, the burn on Eain’s face and the calls to CPS by the school and friends and relatives – you can’t tell me she was that dumb and did not know what was going on.”

Sedita said he understands Hart’s pain and grief. “But we prosecute under the laws of the State of New York,” he said. “To show someone is an accessory, you have to show that they participated in the crime and did so knowingly.”

Kuzdzal, 26, pleaded not guilty at his arraignment Wednesday morning before State Supreme Court Justice Christopher J. Burns on charges of second-degree murder and predatory sexual assault against a child, The judge ordered him returned to the Erie County Holding Center, where he is being held without bail.

After the arraignment, Robert J. Cutting, Kuzdzal’s attorney, said the indictment against his client supports his claim that the boy’s death was a tragic accident. The indictment charges Kuzdzal with second-degree murder “with depraved indifference to human life,” not with intent, he said.

Sedita rejected Cutting’s interpretation of the indictment. “The allegation is not that the defendant accidentally killed the boy but that he acted with criminal recklessness that was so extreme that it constituted a depraved indifference to the life of the victim,” he said.

Before Eain was killed, his relatives said, they repeatedly contacted Erie County Child Protective Services and the state’s child-abuse telephone hotline in Albany out of concern for the boy, who had marks on his body they believed were caused by Kuzdzal.

After Eain’s death, an autopsy reportedly found signs on the boy’s body indicating that he had been sodomized.

Kuzdzal faces a maximum prison term of 35 years to life if convicted of murder and sexual assault, according to James F. Bargnesi, chief of the district attorney’s homicide bureau.